Wells Fargo Armored Service Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1990

300 N.L.R.B. 1104 (N.L.R.B. 1990)

1104
300 NLRB No. 149
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Globe Machine Co., 3 NLRB 294 (1937). We note that no objections were
filed to the self-determination election, and the Respondent never filed a re-
quest for review with the Board. We agree with the judge that the Respondent
is precluded from raising alleged errors in the conduct of the representation
election as a defense in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and
102.69(b) of the Board’s Rules. In these circumstances, we find it unnecessary
to pass on the judge’s finding that the alleged errors would not warrant setting
the election aside had proper objections been filed.
2 397 U.S. 99, 102 (1970). See also Southern Indiana Gas Co., 284 NLRB
895 (1987), enfd. 853 F.2d 580 (7th Cir. 1988); and Federal Mogul Corp.,
209 NLRB 343 (1974).
3 The judge inadvertently did not include this part of his remedy in his con-
clusions of law and recommended Order. Accordingly, we do not need to
modify those portions of his decision. 1 All dates herein refer to 1989 unless otherwise indicated.
Wells Fargo Armored Service Corporation and
International Guards Union of America, Local
66. Cases 27–CA–10984 and 7–CA–11092
December 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On August 29, 1990, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions; to modify the remedy; and to adopt the rec-
ommended Order.
We agree with the judge that the Respondent vio-
lated Section 8(a)(5) of the Act by refusing to recog-
nize the Union as the exclusive collective-bargaining
representative of its employees in the expanded unit,
including the ‘‘Globed’’1 vault guards, and by refusing
to bargain on that basis. We do not agree that the
‘‘Globed’’ employees come automatically under the
terms of the collective-bargaining agreement negotiated
by the parties covering the driver and messenger
guards. To do so would be contrary to H. K. Porter
Co. v. NLRB,2 in which the Supreme Court held that
the Board may require the parties to bargain, but it
may not compel them to agree to any particular collec-
tive-bargaining provisions.
Contrary to the judge, we find that the appropriate
remedy is that the parties bargain over the terms and
conditions of employment of the newly represented
employees. Accordingly, we modify that part of the
judge’s remedy that requires application of the existing
contract to the newly represented employees.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Wells Fargo Armored
Service Corporation, Denver, Colorado, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Michael T. Pennington, for the General Counsel.
Thomas P.G. Franklin, of Atlanta, Georgia, for the Respond-
ent.
Joseph M. Goldhammer, of Denver, Colorado, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Denver, Colorado, on March 6,
1990,1 pursuant to an order consolidating cases, consolidated
complaint and notice of hearing issued by the Regional Di-
rector for the National Labor Relations Board for Region 27
on February 12, 1990, and which is based on charges filed
by International Guards Union of America, AFL–CIO (Union
or Charging Party) on July 28 (27–CA–10984) and October
19 (27–CA–11092). The complaint alleges that Wells Fargo
Armored Service Corporation (Respondent) has engaged in
certain violations of Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act).
Issue
Whether Respondent has unlawfully refused to bargain
with the Union with respect to certain employees employed
at Respondent’s Denver facility: vault custodians, dis-
patchers, coin room, and turret guards; all parties were given
full opportunity to participate, to introduce relevant evidence,
to examine and cross-examine witnesses, to argue orally, and
to file briefs. Briefs, which have been carefully considered,
were filed on behalf of General Counsel and Respondent.
On the entire record, and from my observation of the wit-
nesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is a Delaware corporation en-
gaged in the business of providing armored car services to
commercial customers and financial institutions and having
an office and place of business located in Denver, Colorado.
It further admits that during the past year, in the course and
conduct of its business it has provided services valued in ex-
cess of $50,000 directly to other enterprises within the State
of Colorado, which other enterprises are directly engaged in
interstate commerce. Accordingly it admits, and I find, that
it is an employer engaged in commerce and in a business af-
fecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
1105WELLS FARGO ARMORED SERVICE CORP.
II. THE LABOR ORGANIZATION INVOLVED
I find that International Guards Union of America, Local
66 is a labor organization within the meaning of Section 2(5)
of the Act (Jt. Exh. 9).
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
On August 31, 1972, the Board issued a Certification of
Representative (G.C. Exh. 5) in Case 27–RC–4330, by which
the Union was certified as the exclusive collective-bargaining
representative for a unit of Respondent’s employees de-
scribed as follows:
All regular full and regular part-time guards employed
by the Employer in both the courier or armored car op-
erations in its Denver, Colorado office; excluding office
clerical employees and supervisors as defined in the
Act, and all other employees.
Thereafter, by mutual agreement, the parties modified the
unit description to read, ‘‘all hourly paid guard employees,
being driver guards, messenger guards and guards.’’ (Here-
after called truck guards.) (Jt. Exh. 9, art. 1, sec. 1.)
After certification, the parties reached agreement on a col-
lective-bargaining agreement. Over the years, subsequent
agreements followed. The agreement, effective between Janu-
ary 17, and November 1, 1987, is in the record (Jt. Exh. 9).
On or about March 23, the Union filed a petition in Case
27–RC–6947 seeking to represent a group of Respondent’s
‘‘unrepresented guard employees working out of the Denver,
Colorado branch office including those in the vault, turret
and coin room.’’ The Union requested that a ‘‘Globe self-
determination election be held, so as to ascertain the desires
of the unrepresented employees’’ to be included in the exist-
ing unit of driver guards, messenger guards, and other guards
presently certified in Case 27–RC–4330 (truck guards) (G.C.
Exh. 6).
In a Decision and Direction of Election issued on May 5,
the Regional Director for Region 27, determined that the fol-
lowing employees of Respondent constitute an appropriate
voting group:
All vault custodians, vault custodians/dispatchers, coin
room and turret guards employed at the Employer’s
Denver branch facility (hereafter called vault guards).
Accordingly, the above-described employees would be per-
mitted to vote in a Globe self-determination election on
whether they wished to be represented by the Union as part
of the existing guard unit (Jt. Exh. 6, p. 5).
On June 2, an election was held in which the vault guards,
approximately 14 were allowed to vote (Jt. Exh. 12, par. 3).
A majority of employees selected the Union as their collec-
tive-bargaining representative (G.C. Exh. l(s), par. 7). No ob-
jections were filed to the conduct of the election (Tr. 104–
105, 107).
On June 7, the Union sent a letter to Respondent which
reads as follows:
June 7, 1989
Thomas P.G. Franklin
Assistant Vice President
Wells Fargo Armored Service Corp.
P.O. Box 4313
Atlanta, GA 30302
Re: IGUA 66 and Wells Fargo Armored Service Corp.
Boulder negotiations and negotiations for vault guards,
turret guards, and coin room guards
Dear Mr. Franklin:
On June 7, 1989, Errol Rafsky called me and asked
me to contact you to inform you that he wishes to ne-
gotiate with Wells Fargo Armored Service Corp. in re-
gard to the Boulder guards as well as the vault guards,
turret guards, and coin room guards which have been
newly incorporated into the Denver unit.
Please contact Mr. Rafsky directly to set a time and
date for such negotiations.
Thank you very much.
Very truly yours,
/s/ Joseph M. Goldhammer
Joseph M. Goldhammer
cc: Errol Rafsky [Jt. Exh. 10.]
On June 12, the Regional Director for Region 27 issued
a ‘‘Certification of Representative’’ certifying the Union as
the exclusive bargaining representative of an appropriate unit,
consisting of, ‘‘all vault custodians, vault custodian/
dispatchers, coin room and turret guards [vault guards] em-
ployed at the Employer’s Denver branch facility . . .’’ (Jt.
Exhs. 4, 12, par. 4).
On June 13, Respondent sent a letter and a bargaining pro-
posal to union representatives. The letter reads as follows:
June 13, 1989
Mr. Bob Muskie
c/o Wells Fargo Armored Service Corporation
970 Yuma Street
Denver, CO 80204
RE: DENVER VAULT, COIN AND TURRET
Dear Mr. Muskie:
I just received confirmation that we will meet on
June 26, 27, 28 and 29. We should start at 1:00 PM
on the afternoon of the 26th. We can begin at 9:00AM
on the 27th–29th. I will let you and Dayle [sic] will ar-
range the room.
I am attaching a copy of my initial proposal. Since
we just concluded the Boulder negotiations, I feel like
most of the language we agreed to in that Agreement
can be agreed to for this unit. I have divided the con-
tract into economic and non-economic issues. I have
highlighted the changes that I have made. The rest of
the language is the same. I hope you are in agreement
with my thoughts on the bulk of this language. If you
are in agreement, we will be able to concentrate on the
economic issues during these meetings.
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Looking forward to being in Denver again.
Sincerely,
WELLS FARGO ARMORED SERVICE CORPORATION
/s/ Thomas P.G. Franklin
Thomas P.G. Franklin
Assistant Vice President
Labor Relations
Attachment [Jt. Exh. 11.]
Respondent’s bargaining proposal enclosed with the letter re-
cited above described the unit covered by the bargaining pro-
posal as ‘‘all vault custodians, vault custodian/dispatchers,
coin room and turret guards’’ (p. 3). The document also pro-
posed expiration on July 1, 1992 (Jt. Exh. 11, Proposal, p.
36). No mention was made of the earlier certified unit in-
volving the truck guards whose labor agreement expired on
November 1.
On June 26, the parties met to begin negotiations. The
Union was represented by its attorney, Joseph Goldhammer,
Union Vice President Errol Rafsky, and two others. Both
Goldhammer and Rafsky testified for the General Counsel in
the instant case. Respondent was represented by its Attorney
Thomas P. G. Franklin and three other officials. None of Re-
spondent’s negotiators testified at hearing.
The session lasted between 30 and 45 minutes. Respondent
took the position that it was willing to negotiate only if the
vault guards were considered a separate appropriate unit, a
position contrary to the Regional Director’s May 5 Decision
and Direction of Election, but consistent with the Regional
Director’s June 12 Certification of Representative. The Union
took the position that there was a single unit, described as
the existing Denver bargaining unit (truck guards), now aug-
mented by the addition of the vault guards. Because neither
side agreed to bargain unless the other side accepted its defi-
nition of the appropriate unit, little was accomplished on
June 26.
On the following day, June 27, the Regional Director sent
a letter to the parties which reads as follows:
June 27, 1989
International Guards Union of America
1815 South Oswego Street
Aurora, Colorado 80012
Re: Wells Fargo Armored Service Corp.
Case 27–RC–6947
Gentlemen:
The document entitled ‘‘Certification of Representa-
tive’’ sent to you by the undersigned in the above mat-
ter on June 12, 1989, was issued in error. The enclosed
document entitled ‘‘Certification of Results’’ is what
should have issued on that date. By this letter the ‘‘Cer-
tification of Representative’’ issued on June 12, 1989,
is revoked and the enclosed ‘‘Certification of Results’’
becomes effective.
Very truly yours,
/s/W. Bruce Gillis, Jr.
W. Bruce Gillis, Jr.
Regional Director
Enclosure
[Jt. Exh. 5.]
The ‘‘Certification of Results of Election’’ enclosed with the
June 27 letter stated in pertinent part:
IT IS HEREBY CERTIFIED that the said organization
[Union] may bargain for the employees in the above-
named category [vault guards] as part of the group of
employees which it currently represents at the Employ-
er’s Denver Branch. [Jt. Ex. 3.]
Respondent did not object to the correction.
On June 29, the Union sent a letter to Respondent which
reads as follows:
June 29, 1989
Mr. Thomas P.G. Franklin
Wells Fargo Armored Service Corporation
P.O. Box 4313
Atlanta, GA 30302
Re: Negotiations between IGUA 66 and Wells Fargo
Armored Service Corporation
Dear Tom:
This letter will serve to confirm our discussion at the
negotiating session held at the Super-8 Motel on 6th
and Federal in Denver, Colorado on the afternoon of
June 26, 1989.
Basically, in that discussion, I stated the union’s po-
sition that we were bargaining for the purpose of mak-
ing additions and changes to the existing bargaining
agreement between IGUA 66 and Wells Fargo Armored
Service Corporation of Denver, Colorado because the
recently held election served to include the turret
guards, coin room guards and vault guards within the
same bargaining unit as the driver guards, messenger
guards and guards.
You stated your position that we were bargaining for
a separate agreement and that somehow the turret
guards, vault guards and coin room guards were a sepa-
rate entity of employees for which a separate contract
must be bargained.
I stated that the union was unwilling to waive the
National Labor Relations Board’s determination that the
vault, coin room, and turret guards were to be included
in the existing unit of truck guards. You refused to bar-
gain with us on the basis that the newly represented
employees would be covered under the same agreement
as the existing represented employees.
If this letter does not fairly state the positions of the
parties as expressed at our negotiating session of June
26, 1989, you should let me know immediately. Fur-
thermore, if your position changes at any time that you
will not bargain for inclusion of all of the represented
guards in the Denver facility under the same agreement,
you should let me know.
I will file a charge with the National Labor Relations
Board alleging the company’s refusal to bargain on the
basis of the Board’s certification in Case No. 27–RC–
6947. We will maintain that charge unless you agree to
bargain for the newly represented guards employees to
be included under the game bargaining agreement and
within the same unit as the existing truck guards.
Very truly yours,
1107WELLS FARGO ARMORED SERVICE CORP.
2 Globe Machine Co., 3 NLRB 294 (1937).
/s/Joseph M. Goldhammer
Joseph M. Goldhammer
cc: Errol Rafsky
[Jt. Exh. 2.]
Respondent did not respond to this letter.
On July 10, Goldhammer sent Franklin a follow-up letter,
which reads as follows:
July 10, 1989
Thomas P.G. Franklin
Assistant Vice President
Wells Fargo Armored Service Corp.
P.O. Box 4313
Atlanta, GA 30302
Re: Wells Fargo Armored Service Corporation
Case No. 27–RC–6947
Dear Tom:
I am in receipt of a letter dated June 27, 1989 from
Bruce Gillis, Regional Director of Region 27, revoking
the certification of representative issued in the above-
referenced case on June 12, 1985 [sic] and issuing a
certification of results dated June 27, 1989. The new
certification of results certifies that International Guards
Union of America may bargain for the vault guards,
coin room and turret guards as part of the group of em-
ployees which it currently represents at the employer’s
Denver branch. Thus, you must bargain with us to de-
termine which provisions of the existing contract may
or may not be applicable to the new employees in the
bargaining unit. You must also bargain for modifica-
tions and additions to the existing contract to accommo-
date the new employees in the unit. We are not seeking
any modifications to the contract as it applies to the
truck guards.
This is a demand for you to bargain on that basis.
You refused to bargain on that basis on June 26, 1989.
If I do not hear from you within seven days of the date
of this letter I will assume that you are maintaining the
position that you took at the June 26, 1989; bargaining
session and that you are refusing to bargain with us on
the basis delineated above.
Very truly yours,
/s/Joseph M. Goldhammer
Joseph M. Goldhammer
cc: Errol Rafsky
opeiu 5 [Jt. Exh. 1.]
Again, Franklin did not reply.
On September 26, the parties met to begin negotiating for
a new agreement to replace the existing agreement for truck
guards due to expire on November 1. Rafsky represented the
Union and Franklin the Respondent. The parties exchanged
bargaining proposals (G.C. Exh. 2—Union’s proposal, G.C.
Exh. 3—Employer’s proposal). At this time Rafsky at-
tempted to bargain with respect to a unit of Boulder, Colo-
rado guards and with respect to the vault guards. Franklin re-
fused to bargain over both groups, saying first that the Boul-
der unit was separate, a contention which Rafsky accepted.
As to the vault guards, Franklin stated that he wanted to wait
until the Board hearing to resolve several questions he had.
Eventually, the parties agreed and executed on November
1, a new collective-bargaining agreement for the truck
guards, with the understanding if the Union won the instant
case before the Board, the vault guards would be added to
the recognition clause of the new agreement, and bargaining
would commence with respect to the newly added employ-
ees.
B. Analysis and Conclusions
I begin with the case of NLRB v. Southern Indiana Gas
Co., 853 F.2d 580, 581 (7th Cir. 1988), which explains a
Globe2 election as one where fringe group employees are ac-
corded the opportunity to choose between being represented
as their own distinct group or being represented as part of
the existing larger unit. See also Warner-Lambert Co., 298
NLRB 993 (1990).
In his Decision and Direction of Election of May 5 (Jt.
Exh. 6), the Regional Director determined that the vault
guards were an appropriate voting group and directed that a
Globe election determine whether the vault guards desired to
be represented by the Union as part of the existing guard
unit. The final page of Joint Exhibit 6 shows unequivocal no-
tice to Respondent of the May 5 decision.
After the Union won the Globe election on June 2, the Re-
gional Director erred by first issuing on June 12 a ‘‘Certifi-
cation of Representative.’’ On June 27, the error was cor-
rected with the issuance of a ‘‘Certification of Results’’ (Jt.
Exhs. 3, 5). Between these two dates Respondent took the
position which it continues to assert in this case that the
vault guards are a separate unit and not part of the existing
unit of truck guards. This position was contrary to the Deci-
sion and Direction of Election noted above. It was also con-
trary to the Certification of Results.
In the face of the uncontested facts, I find that General
Counsel has established a prima facie case that Respondent
violated Section 8(a)(1) and (5) of the Act, by refusing to
recognize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the vault guards as part of
the preexisting unit. Southern Indiana Gas Co., 284 NLRB
895 (1987); Federal Mogul Corp., 209 NLRB 343 (1974);
Abex Corp., 215 NLRB 665 (1974), enf. denied 543 F.2d
719 (9th Cir. 1976).
Respondent contends that as a result of certain deficiencies
caused by the Board agent who conducted the Globe elec-
tion, voters were misled into believing they were voting on
the question whether they desired the Union to represent
them as a separate bargaining unit and not as part of the pre-
existing unit. Before considering this and other arguments
advanced by Respondent, I turn to applicable law.
Ballots cast under the safeguards provided by Board
procedure [presumptively] reflect the true desires of
participating employees. . . . Thus, the burden of proof
on parties seeking to have a Board-supervised election
set aside is a heavy one. . . . specific evidence is re-
quired showing not only that unlawful acts occurred,
but also that they interfered with the employees exer-
cise of free choice to such an extent that they materially
affected the results of the election. Kux Mfg. Co. v.
NLRB, 890 F.2d 804 (6th Cir. 1989). Another court has
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Respondent claims (R. Br. p. 7) that the notice of election was not in ac-
cord with the Board’s Casehandling Manual, I decline to consider this argu-
ment in light of the fact that the Casehandling Manual is not legal authority
binding on either the General Counsel or the Board. Kirsch Drapery Hard-
ware, 299 NLRB 363 (1990); Joio’s Restaurants, 282 NLRB 1285, 1288 fn.
12 (1987); Kanakis Co. 293 NLRB 435 fn. 3 (1989) (Chairman Stephens, dis-
senting), and see G.C. Exh. 7.
put the test in slightly different terms: ‘‘not whether op-
timum practices were followed, but whether on all the
facts, the manner in which the election was held raises
a reasonable doubt as to its validity . . . . An election
will be set aside only where the defect significantly im-
paired the election process. Nightingale Oil Co. v.
NLRB, 905 F.2d 528, 531 (1st Cir. 1990).
With these principles of law in mind, I turn to the central
issue in this case which concerns the notice of election and
ballot. The former is contained in the record and reads in
pertinent part:
Voting Unit
THOSE ELIGIBLE TO VOTE
All vault custodians, vault custodian/dispatchers, coin
room and turret guards employed at the Employer’s
Denver branch facility, who were employed during the
payroll period ending May 5, 1989. [Jt. Exh. 8.]
The notice does not advise voters that the union represen-
tation which they may or may not desire will be part of an
existing unit of truck guards as opposed to a separate unit.
The parties have agreed that the ballot used in Case 27–RC–
6947 contained the exact wording as used in the Notice of
Election (Jt. Exh. 12, p. 3, par. 11).
Respondent contends that a fair reading of the notice and
ballot would convey to a reasonable voter that the Board was
conducting a normal representation election and not a Globe
election. In its brief (p. 12, fn. 4), General Counsel does not
concede the notice was misleading, although he states,
‘‘more precise notice language might have been useful in
precluding the possibility of confusion . . . .’’
Citing the case of Athbro Precision Engineering Corp.,
166 NLRB 966 (Br. p. 5), Respondent contends that the error
of the Board agent in drafting the language in the notice and
ballot tended to destroy confidence in the Board’s election
process or could reasonably be interpreted as impugning the
election standards the Board seeks to maintain.
In Rochester Joint Bd., Textile Workers v. NLRB, 896 F.2d
24, 27 (2d Cir. 1990), the court noted the case of Athbro
Precision Engineering Corp., 166 NLRB 966 (1967), vac.
sub nom. Electronic Workers IUE v. NLRB, 67 LRRM 2261
(D.C. Cir. 1968), acquiesced in 171 NLRB 21 (1968), enfd.
NLRB v. Athbro Precision Engineering Corp., 423 F.2d 573
(1st Cir. 1970), which, the court explained, does not establish
any per se rule that representation elections must be set aside
following any procedural irregularity. Rather, the disputed
conduct must be assessed on a case by case basis. In Roch-
ester the court affirmed the Board’s refusal to order another
election because the Board agent had prematurely disclosed
to the Union the results of the Regional Director’s Decision
and Direction of Election finding the multiplant unit to be
appropriate. The premature disclosure enabled the Union to
distribute handbills proclaiming that the Board had ruled in
its favor; however, there was no evidence that the outcome
of the election had been affected by the premature disclosure.
In the instant case, I assume without finding that the no-
tice and ballot in issue did not properly convey to voters that
they were deciding whether to become a part of an existing
unit rather than a separate unit. Yet, I cannot find that such
alleged error was sufficiently prejudicial or material to war-
rant setting the election aside. Compare NLRB v. State Plat-
ing Co., 738 F.2d 733, 742 (6th Cir. 1984), and Hudson
Aviation Services, 288 NLRB 870 (1988).
In Nightingale Oil Co. v. NLRB, supra, 905 F.2d at 531–
532, the employer complained to the court that the election
process was impaired because of an election procedure by
which drivers, clericals, and servicemen were allowed to vote
in a representation election. The Board agent challenged and
segregated the ballots of the drivers and clericals and all
votes were impounded pending the outcome of the Board’s
review of the unit determination. After the election, only the
votes of the servicemen were opened and counted as they
were found to constitute the appropriate unit. On appeal, the
employer claimed that the procedure of allowing the drivers
and clericals to vote effectively changed the scope of the unit
from that described in the notice of election ‘‘all full-time
and regular part-time . . . servicemen . . . excluding all
other employees.’’ After discussion, the court rejected the
employer’s contention finding it unlikely that concern or
confusion over the scope of the unit affected the vote (id at
533). See also NLRB v. Sauk Valley Mfg. Co., 486 F.2d
1127, 1132 (9th Cir. 1973). (Notice incorrectly implied that
an employee has an absolute right to decline to join a union,
where in fact this right may be limited where a security
clause is negotiated. No basis found to set aside representa-
tion election.)
Similarly, in the instant case, I find no credible evidence
to show based on an objective standard that the vote of any
vault guard in the Globe election was likely to have been af-
fected as a result of the alleged confusion caused by the
wording of the notice and ballot. 3
The conclusion that Respondent’s argument lacks merit is
made more compelling by the fact that Respondent never ob-
jected or sought clarification regarding the notice and ballot
at issue. The Decision and Direction of Election of May 5
(Jt. Exh. 6) clearly stated that a Globe self-determination
election will permit the [vault guards] to vote on whether
they wish to be represented by [the Union] as part of the ex-
isting guard unit (Jt. Exh. 6, p. 5). Respondent must have
perceived a discrepancy between Joint Exhibit 6 and the no-
tice and ballot. I cannot speculate why Respondent failed to
act before the election but I do find that it is too late to do
so in this proceeding. See Nightingale Oil Co. v. NLRB,
supra, 905 F.2d at 534.
‘‘It is well settled that in the absence of newly discovered
and previously unavailable evidence or special circumstances,
a respondent in a proceeding alleging a violation of Section
8(a)(5) is not entitled to relitigate issues that were or could
have been litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162; Secs.
102.67(f) and 102.69(c) of the Board’s Rules and Regula-
tions.’’ St. Francis Hospital, 271 NLRB 948, 949 (1984).
Section 102.67(f), referred to above, provides:
(f) The parties may, at any time, waive their right to
request review [of a Regional Director’s Decision and
1109WELLS FARGO ARMORED SERVICE CORP.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
Direction of Election]. Failure to request review shall
preclude such parties from relitigating, in any related
subsequent unfair labor practice proceeding, any issue
which was, or could have been, raised in the representa-
tion proceeding. Denial of a request for review shall
constitute an affirmance of the Regional Director’s ac-
tion which shall also preclude relitigating any such
issues in any related subsequent unfair labor practice
proceeding.
Cf. Power Packaging Corp., 299 NLRB No. 52, fn. 1 (Aug.
9, 1990) .
I further find that the erroneous ‘‘Certification of Rep-
resentative’’ is of no assistance to Respondent. ‘‘The Board
has consistently held that certifications are subject to recon-
sideration and that it may police its certifications by amend-
ment, clarification, or even revocation.’’ Morris, The Devel-
oping Labor Law 411–412 (2d ed. 1983).
In the alternative, Respondent raises two issues which are
equally devoid of merit. First, Respondent contends that it
never refused to bargain. Instead on September 26, according
to Respondent, the parties agreed to negotiate a contract for
the Denver messenger guards and driver guards and leave the
issue of the [vault] guards until after the unfair labor practice
case was resolved (Br. p. 14). No such agreement was ever
reached. Instead, Rafsky decided to accept Respondent’s ulti-
matum that if the Union desired a new agreement for the
truck guards, it would have to abandon its demand that Re-
spondent bargain over the newly added vault guards. If there
was not a new agreement for the truck guards by November
1, Respondent threatened to implement its final proposal
which contained many provisions not favored by the Union.
Prior to November 1, each time Respondent and the Union
met to resume bargaining for the truckdrivers Rafsky asked
Franklin if he would bargain over the vault guards, and each
time Franklin refused.
Besides the lack of agreement with the Union to defer bar-
gaining for the vault guards, I note in agreement with the
General Counsel that the pendency of unfair labor practices
or other collateral litigation does not relieve an employer of
its duty to bargain with the Union. Bob’s Big Boy Res-
taurant, 264 NLRB 432, 434 (1982).
Finally, Respondent contends that to have bargained with
the Union here may have subjected it to charges that it was
bargaining with a union which did not represent an
uncoerced majority of employees. Respondent cites no cases
in support of its claim of potential jeopardy. Nor is its argu-
ment persuasive. In light of Respondent’s failure to file any
objections to the election to preserve its position, I reject Re-
spondent’s argument.
In sum, I find that since June 27, the date on which the
‘‘Certification of Results’’ issued, Respondent has violated
and continues to violate Section 8(a)(1) and (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON
COMMERCE
The activities of the Respondent and the Union set forth
above have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States and
tend to lead to industrial strife burdening and obstructing the
free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent, Wells Fargo Armored Service Cor-
poration, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, International Guards Union of America,
Local 66, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Since June 27, the unit set forth below in paragraph 4,
constitutes a single bargaining unit inclusive of Respondent’s
vault guards, appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. At all times material, Local 66 has been the exclusive
collective-bargaining representative of the employees in the
expanded, single unit, which is :
All hourly paid guard employees, being driver guards,
messenger guards and guards plus all vault custodians,
vault custodian/dispatchers, coin room and turret guards
employed at the Employer’s Denver branch facility; ex-
cluding all non-guard employees, office clericals and
supervisors as defined in the Act.
5. By failing and refusing to accept the vault guard em-
ployees as part of the existing bargaining unit subsequent to
the Regional Director’s issuance of a Certification of Results
of Election, and by failing and refusing to bargain collec-
tively over terms of particular applicability to these newly
added employees in good faith, with the Union as the exclu-
sive representative of the Respondent’s employees in the ap-
propriate unit, Respondent has engaged in, and is engaging
in, unfair labor practices affecting the meaning of Section
8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in and is
engaging in unfair labor practices, I find it necessary that it
be ordered to cease and desist, and to recognize the vault
guard employees as part of the existing unit, subject to its
mutually applicable terms and, on request, bargain collec-
tively with the Union, with respect to terms of particular ap-
plicability to these employees.
In addition, it appears that since June 27 the Respondent’s
vault guard employees may have been deprived of contrac-
tual benefits common to all other unit employees as a result
of the Respondent’s arbitrary and capricious failure and re-
fusal to include them within the general terms of the existing
agreement and its failure to bargain over specifically applica-
ble terms of employment and, accordingly, it shall be re-
quired to give retroactive effect to all terms, including those
subsequently negotiated with respect to specifically applica-
ble terms, including wages, and make these employees whole
for any such loss suffered as a result of the Respondent’s il-
legal practices in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
ORDER
The Respondent, Wells Fargo Armored Service Corpora-
tion, Denver, Colorado, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize its vault guard em-
ployees as part of the existing unit of truck guards rep-
resented by Local 66, International Guards Union of Amer-
ica.
(b) Failing and refusing to bargain collectively with Local
66 over the terms and conditions of employment applicable
to the vault guard employees, newly included in the unit.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize Local 66, International Guards of America
as the exclusive bargaining representative of its employees in
the following single unit:
All hourly paid guard employees, being driver guards,
messenger guards and guards plus all vault custodians,
vault custodian/dispatchers, coin room and turret guards
employed at the Employer’s Denver branch facility; ex-
cluding all non-guard employees, office clericals and
supervisors as defined in the Act.
(b) On request, bargain in good faith with the Union as
the exclusive collective-bargaining representative of its em-
ployees in the appropriate unit described in paragraph 2(a)
above, and, if an agreement is reached, embody it in a writ-
ten and signed contract.
(c) Post at its Denver, Colorado plant copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the notice, on
forms provided by the Regional Director for Region 27, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail and refuse to recognize our vault custo-
dian employees as part of the existing unit of truck guards
represented by Local 66, International Guards Union of
America.
WE WILL NOT fail and refuse to recognize and to bargain
with the Union as the exclusive representative of the employ-
ees in the unit set forth below concerning terms and condi-
tions of employment applicable to the vault guard employee
newly included in the unit and, if an agreement is reached,
embody the understanding in a signed agreement.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL recognize the Union as the exclusive bargaining
representative of our employees in the single unit set forth
below:
All hourly paid guard employees, being driver guards,
messenger guards and guards plus all vault custodians,
vault custodian/dispatchers, coin room and turret guards
employed at the Employer’s Denver branch facility; ex-
cluding all non-guard employees, office clericals and
supervisors as defined in the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and condi-
tions of employment for our employees in the bargaining
unit.
WELLS FARGO ARMORED SERVICE CORPORATION